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[2014] ZALCPE 36
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Agulhas v Dispute Resolution Centre and Others (P 285/06) [2014] ZALCPE 36 (12 December 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
No: P 285/06
DATE:
12 DECEMBER 2014
In
the matter between:
COLIN
LUKE
AGULHAS
..........................................................................
Applicant
And
THE
DISPUTE RESOLUTION
CENTRE
........................................
First
Respondent
WIKUS
RIEKERT
N.O
...............................................................
Second
Respondent
BOSAL
AFRICA
............................................................................
Third
Respondent
Heard:
17 October 2013
Delivered:
12 December 2014
Summary:
When the notice of motion is signed by a person who lacks the
necessary locus stand it is defective and the application
is not
properly before court until the defect is cured.
JUDGMENT
LALLIE
J
[1]
The applicant filed an application to review and set aside a ruling
in which the second respondent (“the arbitrator”)
refused
to condone the late referral of the applicant’s dispute to the
first respondent. The review application is opposed
by the third
respondent. When the review application was set down for hearing on
23 August 2011, the respondent raised a point
in limine
that
the application was fatally defective in that the notice of motion
was signed by a person who lacked the
locus standi
to sign it.
The third respondent also disputed the applicant’s membership
of TAWU, the trade union on behalf of which the
notice of motion was
purportedly signed. The applicant acknowledged the defect and an
order was granted postponing the matter
sine die
to afford the
applicant an opportunity to file his review papers and ensure that
they are properly before court. The applicant
tendered the costs
occasioned by the postponement.
[2]
On 9 September 2011, the applicant filed an amended notice of motion
and an affidavit in which he sought condonation of the
late amendment
of the notice of motion. The application is opposed by the third
respondent which filed its answering affidavit
late and applied for
condonation. The amended notice of motion and the applicant’s
condonation application was faxed to the
third respondent on 7
September 2011. The third respondent received it on 18 October 2011
because its fax facility was faulty.
The applicant gave a detailed
explanation of how and when it is realised that its fax facility was
faulty. The applicant furnished
no factual basis for disputing the
third respondent’s explanation. He submitted that it was
unlikely. Without a factual basis
the conclusion that the explanation
is unlikely cannot stand. The third respondent filed its answering
affidavit shortly after
receiving the condonation application which
was forwarded to it by registered mail. The explanation for the delay
is reasonable,
the third respondent has reasonable prospects of
success and the delay did not prejudice the applicant. In the
premises the condonation
application must succeed.
[3]
The applicant raised a number of points
in limine
. I deem it
appropriate to first deal with the point
in limine
that the
notice of motion is defective as it does not comply with Rule 7 read
with Rule 7A of the rules of this court. It is imperative
that an
application is properly before court. The attack on the notice of
motion is that it lacks the necessary information and
no affidavit
setting out the grounds for review is attached to the amended notice
of motion.
[4]
The filing notice is signed by the applicant’s attorney and the
name and address of his firm is written under his signature.
The
amended notice of motion reads thus:
‘
1.
Condoning the late filing of the applicant’s amended notice of
motion.
2.
Reviewing and setting aside the second respondent’s ruling.
3.
Condoning the applicant’s dispute referral to the first
respondent.
4.
Directing the first respondent to set down the applicant’s
dispute for conciliation.
5.
Further and/or alternative relief.’
[5]
The contents of the notice of motion for a review application are
governed by by Rule 7A which provides as follows:
‘
(1)
a party desiring to review a decision or proceedings of a body or
person performing a reviewable function justifiable by the
court must
deliver a notice of motion to the person or body and to all other
affected parties.
(2)
the notice of motion must-
(a)
call upon the person or body to show cause why the decision of
proceedings should not be reviewed and corrected or set aside
(b)
call upon the person or body to dispatch, within 10 days after
receipt of the notice of motion, to the registrar, the record
of the
proceedings sought to be corrected or set aside, together with such
reasons as are required by law or desirable to provide,
and to notify
the applicant that this has been done; and
(c)
be supported by an affidavit setting out the factual and legal
grounds upon which the applicant relies to have the decision
or
proceedings corrected or set aside.’
[6]
A reading of the notice of motion revealed non-compliance with rule
7A (2). The purpose of filing the amended notice of motion
was to
correct the defect in the original one. The applicant was required to
file an amended notice of motion reflecting that he
had cured the
defect. The third respondent submitted that the applicant did more
than just cure the defect but filed a notice of
motion with fresh and
fatal defects. Non-compliance with rule 7A (2)(a) and (b) may be
condoned but non-compliance with rule 7A
(2)(c) is fatal. See
Country
Fair v CCMA
[1]
.
The applicant failed to comply with Rule 7A (2)(c). He may not
rely on the fact that non-compliance with rule 7A (2)(c)
was not
attacked. He was required to file a proper self-standing notice of
motion. He may not rely on the amended notice of motion
read with
parts of the defective one.
[7]
In the condonation application the applicant submitted that in terms
of his own investigation, contrary to the third respondent’s
allegation that Mr George (“George”) acted fraudulently
in signing the applicant’s original notice of motion
as an
official of TAWU, the allegations of fraud were not proved and the
criminal case against George was dropped. He submitted
that the
contents of the letter the respondent received from TAWU advising
that George lacked
locus standi
was devoid of the truth. He
added that the notice of motion was not amended and that the court
directive, it would appear that
he is referring to the court order of
23 August 2011, was required. The third respondent submitted that the
applicant did not dispute
averments raised about George in the
answering affidavit to the review application. He in fact conceded in
court on 23 August 2011
that his notice of motion was defective. The
explanation given by the applicant for not amending the notice of
motion was alleged
to be inadequate by the third respondent.
[8]
In the point
in limine
which led to the order being issued on
23 August 2011, the third respondent raised George’s lack of
locus standi
and disputed that the applicant was a member of
TAWU at the time the notice of motion was signed. The respondent
submitted that
the applicant was a member of NUMSA and NUMSA referred
a dispute on behalf of the applicant and three other employees to the
first
respondent on 11 January 2006 challenging the fairness of their
dismissal for operational requirements of the third respondent.
The
above averment was not rebutted.
[9]
Even if I can accept that George had the authority to sign the notice
of motion in his capacity as an official of TAWU, the
applicant
failed to prove his TAWU membership which was disputed by the third
respondent. The applicant did not deal with the question
of his TAWU
membership. The source of the
locus standi
of a TAWU official
to sign a notice of motion of a NUMSA member was not disclosed. In
terms of section 161 of the Labour Relations
Act 66 of 1995 (“the
LRA”), a person may be represented by a member, office bearer
or official of that party’s
registered trade union. Section 200
of the LRA enables registered unions to act on behalf and in the
interest of any of its members.
As the applicant has failed to prove
his TAWU membership particularly at the time George signed the notice
of motion, he failed
to prove that George had the necessary
locus
standi
. He therefore failed to comply with the order of 23 August
2011 and his review application is still not properly before court.
[10]
The following dictum in Grootboom v NPA
[2]
is apposite:
‘
The
language used in both
Van Wyk and
eThekwini
is unequivocal the warning is
expressed in vary stern terms. That picture depicted in the two
judgements is disconcerting. One
gets the impression that we have
reached a stage where litigants and lawyers disregard the rules and
directions issued by the court
with monotonous irregularity. In many
instances very flimsy explanations are proffered. In others there is
no explanation at all
the prejudice caused to the court is
self-evident. A message must be sent to litigants that the rules and
the courts directions
cannot be disregarded with impunity.’
[11]
The requirements of law and fairness justify a costs order against
the applicant. He was afforded an opportunity to cure his
papers and
he unreasonably failed to seize it and the third respondent incurred
costs in the process.
[12]
In the premises, the following order is made:
12.1
The third respondent’s late filing of the answering affidavit
is condoned.
12.2
The application is struck from the roll with costs.
Lallie J
Judge
of the Labour Court of South Africa
APPEARANCES
For the
Applicant: Mr Malgas of Malgas & Associates
For
the Third Respondent: Mr Gruss of Henk Wissing Inc
[1]
[1998]
6 BLLR 590
(LC) at 580E-F
[2]
[2014] 1 BLLR 1
(CC) at page 9 E-F